At Momentous Corp., they don’t track vacation or sick days. Staffers can bring their dogs in to the office. The Ottawa Internet firm takes pride in being different, as evidenced by its website, where you will find, in large letters: “We drink. We swear. We don’t f—ing smoke.”

The company hires only non-smokers. This is not to say that there is simply no smoking on company time; Momentous’ 120 employees are not to smoke even in their off hours, or they risk termination. Momentous’ subsidiaries, such as the movie rental company ZIP.ca, have the same policy. The firm, a software and web developer, likens itself to a sports team, where not everyone can make the cut — a philosophy that includes smokers.

“People say, well who else wouldn’t you hire? My answer is, we don’t hire the brilliant jerk. You could be the best at your job in the world, the best on the planet at your job, but if you’re a jerk we don’t want you here,” said Rob Hall, president of Momentous.

The firm makes it clear there are other rejection factors too — such as those allergic to dogs, since Momentous has dogs in the office. “[Smoking] certainly seems to be the most polarizing,’’ he says, ‘‘but the staff love it.”

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In the U.S., 29 states have adopted smokers-rights policies restricting such hiring practices, but Canadian courts have yet to establish a clear precedent on such policies. Smoking may be legal, but it is yet to be found to be a right in Canada.

Legal scholars on both sides of the debate suggested that if smoking were to be a protected status, it would have to be on the grounds of disability. Both the Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms prohibit discrimination on the basis of disability.

“Nicotine addiction might be treated as a disability under human rights legislation, as is alcohol or drug addiction. If that is the case, then a rule banning smoking during leisure time would probably amount to unlawful disability discrimination, as would asking questions during recruitment about whether the employee smokes,” said David Doorey, professor of employment and labour law at York University.

“If nicotine addiction is not a disability, then no law would prohibit an employer from asking if applicants or employees smoke,” he said.

At least two Canadian legal cases have examined this issue, with different results.

In 1998, Ontario prison inmate Peter McNeill fought the Ministry of the Solicitor General and Correctional Services for his right to smoke behind bars, on the basis that it violated his Charter rights, and that his addiction must be accommodated.

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In its decision, the Ontario Supreme Court was concerned about trivializing the definition of disability. The judges described withdrawal as unpleasant and difficult, but temporary — and one that many voluntarily overcome.

“Smoking and the addiction that accompanies it does not interfere with a person’s effective physical, social and psychological functioning, the results that often characterize addiction to alcohol. Nicotine addiction and the symptoms of withdrawal that result when one discontinues smoking are not a mental or physical disability within the meaning of s. 15(1) of the Charter,” the court said.

“Finally, unlike the discrimination suffered by those persons with the types of disabilities intended to be included under s. 15. Mr. McNeill is in a position to do something about the ‘discrimination’ of which he complains. He could forgo his frequent attendances at the Wellington Detention Centre.”

Two years later, Cominco Ltd, a B.C. mining and smelter operation, banned the use of tobacco anywhere on company property.

The union, the United Steelworkers of America, argued the large size of the property did not allow employees time to leave the grounds and smoke on their break. The arbitrator decided, based on expert evidence, that nicotine addiction constituted a disability and Cominco must accommodate the employees. Unlike the McNeill case, the arbitrator found that whether the withdrawal effects were temporary or permanent was irrelevant.

The arbitrator told Cominco and the union to try to find an agreement; they agreed Cominco would help subsidize tobacco cessation programs for the employees and the smoking ban would stay in place.

Much of the debate over such policies centres around the question: Who’s next? The obese? People who like to hanglide?

“We don’t feel it’s justified to discriminate [against] adult smokers because, what’s the next thing? If you want to discriminate smokers, do you want to discriminate someone who eats fats or sugar? There’s no end to it,” said Eric Gagnon, spokesperson for Imperial Tobacco Canada.

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In a 2008 paper in the William Mitchell Law Review — a journal of the William Mitchell College of Law in Minnesota — New England Law professor Micah Berman and Ohio State medicine professor Rob Crane argued that allowing employers to reject smokers wouldn’t bring the same fate for the obese, those with dangerous hobbies, and the like.

“Tobacco use … remains in a class by itself. Tobacco use is known to cause the deaths of five million people worldwide each year – an entirely preventable public health crisis. Tobacco is the only legal consumable product that kills approximately one-half of the people who consume it, it is highly addictive and cannot be used safely in moderation. All of these factors are clear bases on which tobacco use can be distinguished from other potentially hazardous activities,” it said.

Michael Lynk, law professor at the University of Western Ontario, said companies who ban smokers argue they tend to have more illnesses, and be away from work more often. The same thing, he said, can be true for someone who has cancer, or heart disease.

‘‘Employers can’t screen out somebody because they have a pre-existing condition,” said Mr. Lynk.

“Your next step would be to say ‘We don’t want to hire people who are obese, someone who has heart disease or has life long asthma. I’m not sure in front of a human rights tribunal you could say that there is any discernible distinction between a smoker or someone who is obese in terms of where you draw the line.”

According to a report by the Quebec Coalition for Tobacco Control, smokers take roughly two more sick days per year than non-smokers, and take on average an extra 15 minutes break on top of their scheduled break times per day. It also reports non-smokers receive an average discount of 35% on life insurance premiums than those who smoke.

“The same would be true of an employer who [has] a blanket statement or policy that they’re not going to hire smokers, unless they could prove that’s a bona fide occupational requirement for the job and I’m having to think hard as to how it would be. That would probably be illegal under human rights law,” he said.

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It is difficult to argue that being smoke-free for health reasons is a requirement for an office job when the Canadian Armed Forces and Toronto Police Service do not screen out smokers. The one organization Mr. Lynk believes has a good argument on those grounds is the Canadian Cancer Society (which has a no-smoker policy), since so much of their work revolves around the advocacy of tobacco cessation.

For his part, Mr. Hall wants to be clear: He is not an anti-smoking crusader, just that it is his right to choose who he wants to hire. Since Momentous adopted the policy in 2000, its healthcare benefit costs have lowered, and Mr. Hall claims his employees are very happy about the result.

“We had seven employees [who smoked] and we brought in doctors and nurses three times a week from the Ottawa Heart Institute, and we paid for it all of course,” said Mr. Hall. “We said we’d find anything they wanted … one person tried hypnosis and it worked for them, and all seven quit,” he said.

Momentous would happily hire any smoker willing to quit smoking, said Mr. Hall. His company has never had to police the policy, ‘‘not once.’’ If the Supreme Court of Canada ever declared smoking someone’s right, Mr. Hall said, Momentous would end the requirement.

“A lot of people think it’s their right to work here and it’s not. People will scream the discrimination word. Well, of course it’s discrimination, it’s just not illegal discrimination and there’s a huge distinction between those two things. If 10 people apply for the job, the first one to apply doesn’t get it. We’re looking at many other factors and smoking happens to be one.’’